44 Ill. 352 | Ill. | 1867
delivered the opinion of the Court:
This was an action brought by James against Morey, for rent. The defendant was in the employment of plaintiff as clerk, and the plaintiff promised him, if he would marry within a year, to give him one thousand dollars. He did marry, and the plaintiff gave his wife a lot worth five hundred dollars. He allowed the rent to run until the sum of $637.50 had accrued, and then credited himself on the books of plaintiff with $500, as the balance of the one thousand. Both parties testified, and it is at this point that the substantial difference between them begins. The defendant swore that this credit of $500 was talked over between the plaintiff and himself in the office, and the plaintiff assented to the credit. This is denied by the plaintiff, who testifies there was no such conversation, and that he did not know of the entry for more than a year after it was made. On this point the jury seem to have given credence to the defendant, and the matter was within their exclusive province.
It is urged, however, that this promise to pay the thousand dollars was within the statute of frauds. The only mode in which the plaintiff sought to raise this question was by a motion to exclude all the evidence upon that subject. This motion was properly refused, because, even if the promise had been within the statute, its complete performance, if the testimony of the defendant was true, made the statute inapplicable. The testimony of the defendant as to the express authority given him by the plaintiff to enter the credit of $500 may have been true or false, but the court had no right to determine it was false, as it would have done by allowing the plaintiff’s motion to suppress all testimony relating to the promise. If this testimony of defendant was true, the statute of frauds had nothing to do with the case. The thousand dollars, according to this evidence, had been voluntarily paid, and could not be recovered back, whether the promise was originally within the statute or not. In order to present this question, the plaintiff should have asked the court to instruct the jury that they were to disregard all evidence touching the promise to pay the thousand dollars, unless they believed from the testimony that the plaintiff had authorized the defendant to enter the credit of $500, or had assented to such entry after it was made, and they were not to allow the $500 merely because it had been promised.
As the record stands, the question raised in the argument is not before us, and we do not decide whether the promise to pay the thousand dollars was one which could have been enforced by defendant or not.
The jury found a verdict for $26.48, which was admitted to be insufficient, and the court, on the motion for a new trial, held, that the motion would be allowed, unless the defendant would consent that the verdict should be raised to $144.54, the amount due by the lease. The defendant consented, and the judgment was so entered. It was decided by this court in the case of Carr v. Minor, 42 Ill. 179, that this was not error.
An objection is also taken to the form of the verdict, which, as returned by the jury, was for $26.48 for the plaintiff, specifying neither debt nor damages. The clerk improperly recorded it ' as a verdict for damages, but it should have been treated as a finding for the debt. A judgment was entered for the increased amount, and we do not consider the act of the clerk in entering the original verdict in damages, a sufficient reason for reversing the judgment.
Judgment affirmed.
